 |
 |
|
THE CASE FOR DOMESTIC DISARMAMENT
On November 18, 1991 The Responsive Communitarian Platform was released. It spells out an encompassing agenda, and contains the following statement about domestic disarmament:
There is little sense in gun registration. What we need to significantly enhance public safety is domestic disarmament of the kind that exists in practically all democracies. The National Rifle Association suggestion that criminals not guns kill people, ignores the fact that thousands are killed each year, many of them children, from accidental discharge of guns, and that more people whether criminal, insane, or temporarily carried away by impulse kill and are much more likely to do so when armed than when disarmed. The Second Amendment, behind which the NRA hides, is subject to a variety of interpretations, but the Supreme Court has repeatedly ruled, for over a hundred years, that it does not prevent laws that bar guns. We join with those who read the Second Amendment the way it was written, as a communitarian clause, calling for community militias, not individual gun slingers.
Signatories of the Communitarian Platform The listing below includes all those who signed omitting those few who took exception to the preceding clause.
Rodolfo Alvarez (University of California, Los Angeles) John B. Anderson (Presidential Candidate, 1980) Benjamin R. Barber (Rutgers University; signing with exception to the family section) Robert N. Bellah (University of California, Berkeley) Warren Bennis (University of Southern California) Janice M. Beyer (University of Texas, Austin; signing with exception to the family section) David Blankenhorn (President, Institute of American Values) John E. Brandl (University of Minnesota; former Minnesota State Senator, Representative) James Childress (University of Virginia) Bryce J. Christensen (President, The Family in America, The Rockford Institute) Henry Cisneros (Former Mayor, San Antonio, Texas) John C. Coffee (Columbia University Law School) David Cohen (Co-Director, Advocacy Institute) Anthony E. Cook (Georgetown University Law School) Harvey Cox (Harvard Divinity School; signing with exception to cleaning up the policy section) Thomas Donaldson (Georgetown University) Thomas W. Dunfee (Wharton School, University of Pennsylvania) Stuart E. Eizenstat (Attorney, Washington, D.C.) Lloyd Elliott (President Emeritus, George Washington University) Lean Bethke Elshtain (Vanderbilt University) Amitai Etzioni (George Washington University) Chester E. Finn, Jr. (Vanderbilt University) James Fishkin (University of Texas, Austin) Carol Tucker Foreman (Partner, Foreman & Heidepriem) Betty Friedan (New York City) William A. Galston (University of Maryland) John W. Gardner (Stanford University) Neil Gilbert (University of California, Berkeley) Mary Ann Glendon (Harvard Law School) T. George Harris (New York, NY) David K. Hart (Brigham Young University) Jeffrey R. Henig (George Washington University) Albert O. Hirschman (Institute for Advanced Study, Princeton) James Hunter (University of Virginia) Hillel Levine (Boston University) George C. Lodge (Harvard Business School) Malcolm Lovell, Jr. (President, National Planning Association) Duncan MacRae, Jr. (University of North Carolina, Chapel Hill) Frank Mankiewicz (Vice Chairman, Hill and Knowlton) Jane Mansbridge (Northwestern University; signing with exception to family section) Gary Marx (Massachusetts Institute of Technology) Thomas McCollough (Duke University) John L. McKnight (Northwestern University) Newton N. Minow (Former F.C.C. Chairman; Attorney, Chicago, Illinois) Charles Moskos (Northwestern University) Ilene H. Nagel (U.S. Sentencing Commission and Indiana University) Richard John Neuhaus (President, Religion and Public Life Institute) William C. Norris (Chairman, William C. Norris Institute, Minneapolis, Minnesota) Michael Pertschuk (Co-Director, Advocacy Institute) Chase N. Peterson (President-Emeritus, University of Utah) Grethe B. Peterson (University of Utah) Terry Pinkard (Georgetown University) David Popenoe (Rutgers University) David Reisman (Harvard University; signing with the exception to cleaning up the policy section) Alice S. Rossi (Former President, American Sociological Association; Amherst, Massachusetts) William D. Ruckelshaus (Chairman of the Board and Chief Executive Officer, Browning-Ferris Industries; Houston, Texas) Isabel Sawhill (Senior Fellow, The Urban Institute) Kurt L. Schmoke (Mayor of Baltimore) Phillip Selznick (University of California, Berkeley) Albert Shanker (President, American Federation of Teachers) Fred Siegel (Cooper Union) Gillian Martin Sorensen (President, National Conference of Christians and Jews, Inc.) Thomas Spragens, Jr. (Duke University) Margaret O'Brien Steinfels (Editor, Commonweal) Adlai E. Stevenson (Chicago, Illinois) Peter L. Strauss (Columbia University) William Sullivan (LaSalle University) Robert Theobald (New Orleans, Louisiana) Lester C. Thurow (Dean, Sloan School of Management. Massachusetts Institute of Technology) Daniel Thursz (President, The National Council on the Aging) Kenneth Tollett (Howard University) Barbara Dafoe Whitehead (Amherst, Massachusetts) Dennis H. Wrong (New York University) Daniel Yankelovich (President, Public Agenda Foundation)
The board of the American Alliance for Rights and Responsibilities endorsed the platform as of March 1992. The Communitarian Perspective Of all the issues that plague our communities, none is more severe than pervasive violence. The most elementary duty of a community is to provide a safe, civil order to its members. The fact that in all too many of our communities children have to sleep on the floors of their homes to dodge drug dealers' bullets; that many of our cities' ordinary citizens cannot walk their streets not to mention parks with impunity; that we lose more lives to mayhem than any other established democracy, are all deeply troubling signs of our violence-ridden society. The senseless, brutal killing of innocent people is a tragedy that can be stopped, and the danger that our cities can be turned into Beiruts or a Dubrovniks must be averted.
True, violence has many sources. However, none can be as effectively and rapidly removed as the technology of violence. Given the proper political support by the people who oppose the pro-gun lobby, legislation to remove the guns from private hands, acts like the legislation drafted by Senator John Chafee, can be passed in short order. There are no particular technical difficulties to implement the legislation; no need to develop new vaccines, space stations, or even to fashion yet one more bureaucracy. Moreover, the benefits would be very quickly and dramatically visible, adding support to the disarmament measures.
The record of those areas that implemented even a limited set of gun controls shows the value of these measures. For example, a District of Columbia law that banned the purchase, sale, transfer, or possession of handguns by civilians ". . . coincided with an abrupt decline in homicides and suicides by firearms in the District of Columbia . . . . Our data suggest that restrictions on access to guns in the District of Columbia prevented an average of 47 deaths each year after the law was implemented."1 Last but not least, one of the major Communitarian concerns is the proliferations of rights and the dearth of social responsibilities. As our report on the repeated rulings of the Supreme Court shows (see below), the notion, endlessly propagandized by the gun lobby, that there is a right to bear arms by private individuals is not to be found in the Constitution. To suggest that citizens have a responsibility to try to resolve their differences peacefully and by non-violent means, and if this cannot be achieved to turn to courts and legitimate authorities not to guns, is at the heart of the Communitarian perspective.
The Case for Domestic Disarmament In the Summer of 1991 The Responsive Community: Rights and Responsibilities, the only communitarian quarterly, published the following editorial in favor of domestic disarmament:
Gun Control: A Vanilla Agenda Recent homicides in Washington, D.C., gang warfare in Los Angeles, and unusually senseless killings in New York City have again focused media attention on the high level of crime in the United States. The public frustration with the inability of authorities to provide elementary protection, even for infants who must sleep on floors in some parts, seeking to dodge the bullets of drug dealers is growing to such an extent that the public is increasingly receptive to extreme measures. There seems to be a significant increase in the number of people who are arming themselves, who favor hanging drug dealers randomly or shooting them on sight (as has been urged by the police chief of Los Angeles), even suspending the Constitution until the war on drugs is won.
Meanwhile, the experts continue debating each other over what measures
might be taken that will be both effective and well within the constitutional framework.
Some favor more expenditures on drug treatment programs; others favor more cops on
the
There is, however, one measure sure to gain monumental benefits in the short run. It is politically nearly impossible to take, otherwise low-cost and very effective. It is not discussed in politically polite company, nor is it found in the lists of measures typically debated by experts. The closest most liberal groups come to it is to suggest gun registration. Cautious not to enrage the powerful National Rifle Association or to put elected officials in an untenable position, the call is out for gun purchases to be registered, to institute waiting periods of few days before allowing such purchases, and perhaps even to mandate checks of the police record of potential purchasers. Recently, some have even dared to suggest prohibiting to sale of assault rifles.
These vanilla-pale measures have not been enacted because the opposition, spearheaded by the NRA, is following a typical hard-line strategy of opposing any and all limitations on arms, however reasonable, measured, or mild. They oppose limitations on the sale of machine guns, armor-piercing bullets (used to penetrate the bullet-proof vests an increasing number of police are wearing, as are various heads of state and the Pope), not to mention gun registration. In short, pulling punches in an attempt not to provoke the opposition is useless. Nor have most politicos found that they can endorse even the most innocuous measures.
On the other hand, the electorate, which is mainly in favor of gun control, cannot be truly rallied to support these vanilla measures. The public correctly senses that even if these steps were fully implemented, they would at best trim the problem rather than make significant inroads into the world of violent crime. The thousands killed each year, mainly children, because of the accidental discharge of guns, will not be saved if guns are first registered. The thousands killed because of impulsive use of guns by family members against each other, former girl or boyfriends, and former employers will not live if the gun purchases are delayed seven, thirty, or even ninety days. And criminals, given the ease with which one can obtain false documents in the country, will continue to buy about as many guns as they did before.
What is needed is domestic disarmament. This is the policy of practically all other Western democracies, from Canada to Britain to Germany, from France to Scandinavia. Domestic disarmament entails the removal of arms from private hands and, ultimately, from much of the police force. Once guns are hard to obtain and the very possession and sale of them are offenses, the level of violent crime will fall significantly.
Americans who have grown up in a gun-permissive culture have a hard time recognizing the effectiveness of domestic disarmament. Persons who seek to commit an armed crime in other countries, and thus try to purchase a gun on the sly, are often apprehended in committing this offense long before they can hurt anyone. True, some hardened criminals will use knifes or obtain guns anyhow, but statistically, the unavailability of guns makes violent crime simply yes, it is simply much less likely . . . .
Moreover, unlike drug rehabilitation, prison construction, and the training of more cops, domestic disarmament can be rapidly implemented. While the initial cost may be high especially if one is to buy out all existing arms manufacturers and arms now in private hands at some publicly set price, rather than confiscate them this is a one-time cost. In contrast, expanding prisons and police forces involves recurring costs that in accumulation are much higher. Politically, the National Rifle Association and its allies could not be more opposed to domestic disarmament than they are to the vanilla measures favored by cautious politicians and experts. More importantly, the public at large could truly rally for a program that would have a major effect on violent crime. This public support would lend the program the kind of strong support at the ballot box which is lacking for gun "control" measures.
One might take into account that the gun lobby has three subconstituencies. Gun collectors may be accommodated by provisions allowing them to keep their collection, but rendering them inoperative (cement in the barrel is my favorite technique). Hunters might be allowed (if one feels this "sport" must be tolerated) to use long guns that cannot be concealed, without sights or powerful bullets, making the event much more "sporting." Finally, super-patriots, who still believe they need their right to bear arms to protect us from the Commies, might be deputized and invited to participate in the National Guard, as long as the weapons with which they are trained are kept in state controlled armories. All this is acceptable, as long as all other guns and bullets are removed from private hands. But what about the right to bear arms? There is considerable debate among constitutional scholars as to what the Second Amendment actually implies (for a fine overview of on-the-one side but-on-the-other side, see the masterful essay by Sanford Levinson, Yale Law Review, 1989). I find particularly compelling the arguments by Lawrence Delbert Cress (in the Journal of American History, 1984) who argues that we ought to see the Second Amendment in the historical context that it was written. He stresses that the Founders believed in republicanism and that "seventeenth- and eighteenth-century republican theorists understood access to arms to be a communal, rather than an individual right." He adds, "citizenship . . . connoted civic virtue, a commitment to the greater public good, not an insistence on individual prerogative." Surely the text of the Second Amendment readily accommodates that interpretation; far from referring to "a right to bear arms," as it is so often quoted, it reads: "A well regulated Militia, being necessary to the security of a free State, the rights of the people to keep and bear Arms, shall not be infringed." Most important, as no less an authority than Erwin N. Griswold, former solicitor general in the Nixon administration and former dean of Harvard Law School, pointed out:
Never in history has a federal court invalidated a law regulating the private ownership of fire-arms on Second Amendment grounds. Indeed, that the Second Amendment poses no barrier to strong gun laws is perhaps the most well settled proposition in American constitutional law. Yet the incantation of this phantom right continues to pervade congressional debate.
Over the past 114 years the Supreme Court ruled at least three times that the Second Amendment has nothing to do with individual rights to bear arms but rather the right of the states to an armed militia. (Most evident in U.S. v. Miller)
Perhaps the best way to proceed, if nationwide domestic disarmament cannot be achieved immediately, is to introduce it in some major part of the country, say, the Northeast. That will allow everyone to see the falsity of the NRA's beloved statement that criminals kill people, not guns. While some killers indeed use whatever weapons they can get their hands on, studies show that most offenders commit fewer violent crimes and cause fewer fatalities when guns are not available. The rapid fall in violent crime sure to follow will make ever more states demand that domestic disarmament be extended to their religion.
Finally, the enormous savings in police resources which will result as violent crime declines dramatically will allow us to dedicate many more resources to crime control and prevention in other areas, including drug rehabilitation and prison-building. Hence, if domestic disarmament is ever implemented in some parts, it will soon become an irresistible, natural public policy.
by Amitai Etzioni On June 1, 1992, the office of John H. Chafee (R-RI) released the following draft legislation.
Domestic Disarmament: Draft Legislation
LEGISLATION BY SENATOR JOHN H. CHAFEE TO PROHIBIT THE POSSESSION, SALE OR MANUFACTURE OF HANDGUNS
PROPOSED HANDGUN LEGISLATION
Prohibits the importation, exportation, manufacture, sale, purchase, transfer, receipt, possession, or transportation of handguns.
Establishes a "grace period" during which time handguns may be turned into any law enforcement agency with impunity and for reimbursement at the greater of either $25 or the fair market value of the gun.
Allows an exception for:
* agencies of federal, state, or local government (military and law enforcement)
* collectors of antique (nonserviceable) firearms
* federally-licensed handgun sporting clubs; the clubs must be founded for bonafide target or sport shooting; must maintain possession and control of the handguns used by its members; must have procedures and facilities for keeping the handguns secure when not in a local law enforcement facility; and may not have as members persons whose membership would violate state of federal law
* federally-licensed professional security guard services [operating with similar conditions as those set for handgun clubs]
Sets up penalties of up to $5,000, or up to 5 years imprisonment, or both, for violation of the provisions of the Act.
We suggest the following friendly amendment to Senator Chafee's proposed legislation:
Extend the above prohibitions to ammunition for handguns, allow for the exceptions to apply also to ammunition, and establish a "grace period" during which those who turn over ammunition to any law enforcement agency would be reimbursed at the fair market value.
Background
(Provided by the office of Senator Chafee.)
HANDGUNS IN THE UNITED STATES: CRIME, INJURY AND DEATH
Currently, there are 202 million firearms in private use in the United States: 66.7 million handguns, 62.4 million shotguns, and 72.7 million rifles. The Bureau of Alcohol, Tobacco, and Firearms (BATF) define handguns as those firearms designed to be fired by the use of a single hand; both pistols and revolvers fall into this category. BATF data show that the number of handguns available today is more than twice the 31 million circulating in 1972. According to BATF, each year at least 2 million additional handguns become available.
MURDER: In contrast to "long guns," the compact and easily concealable handgun plays a disproportionate role in the commission of violent crimes. Handguns are responsible for 75 percent (10,000) of all firearm murders, which represent 60 percent of all homicides nationwide. While the number of murders committed with other gun has remained stable, handgun murders have set new records every year since 1988, matching pace with the skyrocketing national homicide rate. At least one-half of all handgun murders are committed during an argument; and in most cases, the victim is related to or knew the aggressor. For every case of self protection homicide with a gun kept in home, there are an estimated 43 murders, accidental deaths, and suicides. Seventy percent of law enforcement officers killed in the line of duty are shot by handguns.
INJURY DEATH: Handguns also play a significant role in injury deaths. Injury death caused by handguns and other firearms is high; together, firearms (22 percent) account for more than half of all fatal injuries. In 1990, both Louisiana and Texas boasted a rate of firearm-related injury exceeding that of motor-vehicle deaths (long the leading case of injury death in the United States)
INJURY: For those injured but not killed by handguns, the probability for requiring medical attention is high: of all the 15,000 persons injured each year by a handgun during a crime, virtually all 95.5 percent require emergency care or hospitalization. Many gunshot wound victims are severely and permanently disabled, requiring intensive medical treatment and rehabilitation.
SUICIDE: Suicide by handgun is common. Of the more that 30,000 annual suicides, about 60 percent (or 18,000) are firearm-related; and of these, an estimated 70 percent involve handguns. Handguns are an effective and lethal suicide method.
CHILDREN AND ACCIDENTAL INJURY: Gun-related injury is the fourth leading cause of death for children, and 40 percent of these deaths are accidental. The risk to children posed by handguns in the home is significant: at least 266 accidental handgun shootings of children occurred between 1986-88. Nearly 90 percent of these took place in the child's, a friend's, or a relative's home; 80 percent of the child victims were shot by another child whose age was within 2 years of their own.
HANDGUNS AND EDUCATION
Increases in school gun incidents and violence spurred the head of the National School Safety Center to state that "[w]e've never seen a year like 1991-92. School gun incidents involving the shooting of a student of the confiscation of a gun have occurred [in] nearly every state. In the four year period from 1986-1990, at least 70 students and employees were killed by guns at school; 201 were wounded; and 242 were held hostage. Many schools now keep records of each year's "death toll."
A 1991 school crime survey conducted by the Department of Justice revealed that 37 percent of public and 27 percent of private school students fear attack at or on the way to school, and a 1990 survey by the National Center for Education Statistics revealed that one out of every five eighth graders says that he or she has witnessed some kind of weapon at school. Parents are equally worried. In 1991, the National Commission on Children reported that 10 percent of all parents worry that their child will get shot.
Today, an estimated 645,000 one in 20 high school students have carried a gun (usually a handgun) at least once in the past month, according to a survey conducted by the Centers for Disease Control; many carry there guns to school.
In 1987, an estimated 270,00 male students nationwide carried handguns to school at least once, according to the data provided by the National Adolescent Student Health Survey; and one third of the students surveyed said that yes, they could obtain a handgun. A 1990 study conducted by the Texas A & M University found that even in smaller, rural areas, more than 40 percent of the schoolchildren reported the ability to obtain a handgun.
At Jefferson High School in Brooklyn, a student killed one teen another young "innocent bystander," bringing the school's death toll for this year to 56. In Crosby, Texas a 15-year-old female honors student shot a 17-year-old star student athlete in the lunchroom for insulting her. In Chicago, a third-grader brought two guns to school from home: the first, he sold to a school bus driver for $20; the second, he showed off in front of classmates and shot one of them in the spine. In Clinton, Maryland, and 11-year-old mad at his father brought a fully loaded .38 caliber revolver to school to "impress his friends." In Cleveland, a 13-year-old girl was shot in the face and killed by a 16-year-old who had brought his mother's gun to play with while watching television. In Obetz, Ohio, at a small school of 531 students, a seventh-grade boy shot his classmate with a revolver. In Potomac, Maryland, a 16-year-old boldly walked into high school chemistry class and fired his handgun at point-blank range at his intended student victim, who somehow escaped the bullet.
In at least 75 percent of the reported incidences, the gun that showed up at school was a handgun; and often, the handgun came from the student's home.
HANDGUNS AND HEALTH CARE
Handguns are the weapon of choice in 70 percent of both gun homicides and gun suicides, totaling 10,000 and 12,600 respectively. Countless others, many of them children, are killed accidentally or wounded by handguns. Data released by the Centers for Disease Control revealed homicide to be the fourth leading cause of premature death in the United States, robbing Americans of a total of 845,600 years of "potential life." Homicide also proved to be the fastest growing case (+15 percent over 1989), beating out HIV infection (+10 percent). The leading cause of premature death was unintentional injury, with 2.1 million years lost; suicide came in fifth with 675,000 years lost. Handguns contribute significantly to all three of these causes homicide, accidental injury, and suicide.
These tens of thousands of handgun deaths and injuries place a significant strain on health care resources and finances. Emergency rooms (nicknames "knife-and-gun-clubs") are reporting ER gridlock weekly. Hospitals are closing affiliated trauma centers out of concern that the overwhelming costs of caring for the influx of severely-wounded, mostly uninsured victims of street violence will endanger the parent institution. At least 40 trauma centers have closed since 1988.
In 1984, researchers calculated that the per-patient cost of gunshot wounds ranged from $559 to $64,470, with an average bill of $6,915. Recent data collected during 1989-91 at a major New York hospital found costs ranging from $402 to $274,189, with an average cost of $9,646. One major trauma center found average per-patient costs of $16,704. At Washington Hospital's MedSTAR facility, the cost of treating gunshot patients in 1987 jumped 161 percent in two years to more than $6 million. An estimated 86 percent of firearms-injury costs are paid by government resources.
In addition, the costs of ambulance services, follow-up care, medication, and rehabilitation can be particularly expensive. Once such injury is a traumatic spinal cord injury (SCI), which can result in paraplegia or quadriplegia, and which costs the United States an estimated $6.2 billion annually. Gunshot wounds are the third leading cause of SCI, behind motor vehicles and falls. Acts of violence (guns) account for more than one in every 7 spinal injuries, and more than one in every 5 spinal cord injuries in young persons (under age 16). For initial rehabilitation of paraplegics (those with partial paralysis), the per diem cost at a rehabilitation center is $1,500. For quadriplegics (those with paralysis in all four limbs), the average cost is $270,000; lifetime costs average $570,000.
The overall cost of firearms injury to the U.S. health care system is more that $4 billion, according to the Chair of the 1991 Advisory Council on Social Security.
Additional Argumentation: A Majority of the Public Supports Various Measures of Gun Control
Virtually every survey of Americans' opinions on the subject before us shows that the majority of Americans favor gun control. The following is a small but representative set of findings.
A 1989 survey of adults nationwide by Yankelovich Clancy Shulman for Time and CNN found that 89% were in favor of "requiring a two week waiting period before anyone can buy a gun to allow time to check a buyer's background."
84% of those surveyed by Yankelovich Chancy Schulman also said that they believe that "violence from the use of guns is becoming a bigger problem in the country these days."
A Gallup Poll released September 26, 1990 reported that 81% of adults surveyed said that they favored handgun registration, when asked "Would you favor or oppose the registration of all handguns?" This figure has risen from 66% in favor in 1982, according to Gallup.
In the same Gallup Poll, when asked "In general, do you feel that the laws covering the sale of firearms should be made more strict, less strict, or kept as they are right now?" 78% said these laws should be made more strict, up from 59% in 1983. A Gallup Poll from September, 1990 found only 2% of those surveyed believed that gun laws should be made "less strict." A New York Times/CBS News Poll, March 12, 1992, reported that of adults surveyed nationwide 86% were in favor of "a national law that required a seven-day waiting period between the time a person applied to buy a handgun and the time it was sold." 79% said they "would favor . . . a ban on assault weapons that is, semi-automatic military-style rifles that can hold up to 30 bullets."
When asked "Do you think the sale of assault weapons like the AK-47 rifle should or should not be banned?" 73% of registered voters nationwide, surveyed by Hotline/KRC for the Boston Globe in March, 1989, respondent that these weapons should be banned.
A nationwide Gallup Poll, conducted September 10-11, 1990, asked, "Would you favor or oppose a national law requiring a 7-day waiting period before a handgun could be purchased, in order to determine whether the prospective buyer has been convicted of a felony or is mentally ill?" 95% responded in favor of the waiting period.
Domestic Disarmament in Other Countries
The United States is the only democratic nation in which guns are, in effect, readily available to private citizens. In Great Britain a certificate is required for the purchase of a handgun, and few individuals who are not members of licensed gun clubs and store their guns at the club may own guns. In Sweden, a license is required to purchase or possess a handgun, and these licenses are difficult to obtain. Canada requires a 28 day "cooling-off" period, a permit, and a background check before a gun may be purchased. The ownership of handguns is prohibited in Japan, with the exception of antique gun collectors and members of licensed shooting teams.2
The results of our promiscuous gun policy are documented in the Journal of the American Medical Association: the homicide rate for young men in the U.S. is 4 to 73 time higher than that of other industrialized nations. Firearms were used in three-fourths of these killings.3
Guns: The High-Tech of Violence
The gun lobby, groups such as the National Rifle Association and the Gun Owners of America, frequently argue that the problem is not guns but criminals; that criminals kill even when guns are not available, and guns in the hands of law-abiding citizens are a benefit, not a problem; that "gun control is not crime control."4 This is not a complete falsehood. Criminals do kill people and even when there are no guns available some turn to knives, sticks, or pitch-forks. However, it is equally true that when guns are readily available, criminals have a technology that allows them to kill more people, more often, more easily, and with greater impunity, then they would otherwise.
Guns are like other technologies: they vastly amplify the force we command. Second, deranged individuals can commit mass murder they could not commit otherwise. A small sample of murders which otherwise would not have taken place is provided below:
A 24-year-old drifter walked into the playground of the elementary school he attended years before in Stockton, California, armed with an AK-47, a powerful semi-automatic assault rifle, he killed five students and wounded 30 others.5
. . . one handgun-owning family was shattered on Mother's Day, 1987, when a 10-year-old Houston boy was angry at his parents for not letting him play outside. After his father called him into the house, they continued to argue. The boy found his father's .38-caliber handgun under a sofa and fired all six rounds at his parents, killing his father with a bullet to the head and seriously wounding his mother.6
A four-year-old boy shot his mother to death in 1987 when he and his older brother, 7 years old, were playing with a loaded revolver they found in the home. The gun was kept loaded for "protection."7
Members of rival drug gangs sprayed over 40 bullets in a drive-by shooting, killing one and wounding seven others, on a street corner in the Bronx on May 3, 1992. A policeman said the shooting was indiscriminate, and they are unsure whether those shot were intended victims or innocent bystanders. Among the weapons used were an AK-47 and M-16 assault rifles.8
The escalation of violence which began with the near-collision of two cars left two people dead and three wounded. The argument which followed the near-collision prompted Deandrea Richards to get a gun, and seek out the other car which was filled with gang members. He shot several times into the car which crashed into a gas station. Two gang members are accused of then seeking revenge against Richards. Two-year-old Phillip Fisher and Richards were playing outside when a car drove by spraying 25-30 bullets from an AK-47. Although Richards tried to flee with the boy, both were killed.9
In one analysis of 13,649 murder victims 66% were killed by the use of a firearm.10 Firearm elimination would decrease this high rate of murder in two ways: in some cases faced with the lack of firearms, the potential murderer will abandon his intent altogether, and no crime will take place, for reasons soon to be explained. Secondly, in a greater number of cases, some less deadly weapon will be substituted for a firearm, and what otherwise would have been a lethal attack will be in many cases, a non-fatal one.
This analysis is confirmed by a study reported in the June 10, 1992 issue of JAMA (Journal of the American Medical Association). The study of family and intimate assaults found that those which involved firearms "were 12.0 times more likely to result in death than non-firearm-associated FIAs (family and intimate assaults)."11
Certain murders by their nature require a firearm. It is very difficult to attack a guarded bank without using some sort of firearm. Weak persons, children, and cowardly assailants would find attacks on others, particularly physically strong victims, difficult, of not impossible with out firearm availability. As Robert Coles reports: "Every psychiatrist has treated patients who were thankful that guns were not around at one time or another in their lives. Temper tantrums, fights, seizures, hysterical episodes all make the presence of guns an additional and possibly mortal danger."12
An informal examination of actual cases indicated that in 25% of all murders committed with firearms, the absence of the firearms would have resulted in no crime at all being committed.
What does this mean in terms of the overall murder rate? 66% of all murderers in the study referred to above used firearms, and after domestic disarmament, firearms would not be available in most of these cases. Our estimated reduction by 25% of all murders, in such cases would therefore mean a total decrease of 15.9% of all murders (if domestic disarmament if 95% effective), the reduction would be by 14.0% if it is 85% enforced.
However, the benefits of domestic disarmament do not stop here. In the attacks that still do occur, the substitution of less deadly weapons for firearms will result in a large saving of lives, even if the number of incidents as such remain the same.13 It is well documented that murders fall into two categories: those characterized by a "single minded intent to kill,"14 and those which are "slaying in the heat of passion, or killing as a result of the intent to do harm, but without specific intent to kill."15 We will assume pessimistically that all the remaining murders if the first type will be successfully carried out, even in the absence of firearms. However, in the later cases this will not be true. These attacks, for more numerous, almost always grow out of quarrels and arguments, usually among family or friends.16 The typical case involves someone grabbing the most potent weapon around and using it. If it is a gun, the effect is usually fatal. As the head of Chicago Homicide put it, describing one such case: "There was a domestic fight. A gun was there. And then somebody was dead. If you have described one you have described them all."17 But what happens if a gun is not there? On the basis of the aforementioned survey we assume that in three out of four of the cases, an attack will still take place and the next most lethal weapon, a knife, will be used. It has been shown that fewer fatalities in the case of knife attack will result by a ratio of 4 out of 5, i.e., only one fatality where firearms would have left five dead.18 In other words, in such attacks, when knives instead of guns are used, the death rate goes down by 80%. (Of course when other weapons are used, as they would be, whether fists, beer bottles, or baseball bats, the reduction will still be greater, but we will stick to our conservative estimate.) Contrary to the sloganeering of the gun lobby, an author writing for the American Journal of Public Health wrote, "people without guns injure people; guns kill them."19
To calculate the effect of this "substitution," we first calculate the number of attacks that would still occur when firearms are eliminated. Since 66% of murders are by firearms and in 95% of these cases firearms would have been eliminated, and knowing that 75% of these previously firearms attacks will still occur, we find that 47% of all murders are attacks in which another weapon will by substituted for a firearm. With 85% elimination, our pessimistic projection, such cases are 42% of the total. A study of Chicago murders showed that 78% were the type that characterized as "deadly attack," not "Single-minded" murders.20 (It is among these attacks that 80% reduction of the overall substitution of other weapons for firearms, we will expect a reduction in the overall murder rate from 26.3% to 29.3% (depending on the effectiveness of domestic disarmament).
Combining the two effects, i.e., the elimination of some firearm attacks altogether, and use the less deadly weapons in others, the overall reduction in murder would optimistically be 45.0% and pessimistically 40.3%. In the year studied this would have amounted to saving from 5,501 to 6,142 lives.
No Right to Private Gun Ownership: A Legal Analysis
The controversy that has surrounded the Second Amendment has centered on its language regarding "the right of the people to keep and bear arms."21 The Supreme Court has unequivocally stated that this clause is just a portion of the entire amendment, and should not be taken out of context. The Amendment in its entirety reads, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."22 The Court, looking at the Second Amendment as a whole, has repeatedly ruled that it refers to the desire of the constitutional Framers to protect the state militias from disarmament by the federal government, not to protect the individual citizens against disarmament by the states. The result of the Court's historical analysis has been to systematically apply the Second Amendment to allow state regulation of firearms, going so far as to decline to hear appeals from lower court rulings that have been struck down to challenge gun control laws.
Outside of the courtroom several Supreme Court justices have expressed their staunch personal support for the idea that the Second Amendment does not prevent the regulation of firearms. For example, former Justice Warren Berger, referring to the NRA's interpretation of the Second Amendment, stated that "This has been the subject of one of the greatest pieces of fraud . . . on the American public by special interest groups that I have ever seen in my lifetime."23 Former Justice Lewis Powell agreed in a recent speech to the ABA, saying, "With respect to handguns . . . it is not easy to understand why the Second Amendment, or the notion of liberty, should be viewed as creating a right to own and carry a weapon that contributed to the shocking number of murders in the United States."24
The Supreme Court first addressed the issue to the right to bear arms in the United States v. Cruikshank.25 In this case, Klu Klux Klan members were charged with infringing the constitutional rights of black citizens to bear arms. The Supreme Court ruled that the right of the people to keep and bear arms "is not a right granted by the Constitution."26
The Supreme Court reaffirmed Cruikshank's rule that there is no individual constitutional right to bear arms in Pressner v. Illinois.27 At issue in this case was an Illinois statute which prohibited private organizations from parading with firearms in any Illinois city without license from the governor. The Court, specifically citing Cruikshank, again held that the Second Amendment was not intended to be applied to individuals.
In Miller v. Texas, 28 Franklin Miller was convicted for murder. He appealed, challenging a Texas Statute prohibiting the carrying of dangerous weapons in the person. Addressing the Second Amendment challenge, the Court states that "a state law forbidding the carrying of dangerous weapons on the person . . . does not abridge the privileges of immunities of the citizens of the United States."29
The most often-cited case regarding gun control is U.S. v. Miller.30 Here, Jack Miller was charged with transporting a sawed-off shotgun in interstate commerce in violation of the national Firearms Act of 1934. In addition, Miller had failed to register the shotgun, in violation of the Act. The lower court ruled dismissed the charge against Miller, but the Supreme Court unanimously reversed this ruling, allowing the charge to stand. The Court stated that in the absence of showing that the sawed-off shotgun had any "reasonable relationship to the preservation of efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."31 The Court continued by giving a historical analysis of the Second Amendment, stating that its purpose was to reserve to the states the authority to appoint officers and train the militia according to the authority of Congress, and emphasizing that the Amendment "must by interpreted and applied with that end in view."32
More recently, the Supreme Court maintained its strong stance against interpreting the Second Amendment as a protection of an individual citizen's right to possess weapons in three cases: Lewis v. United States,33 Quilici v. The Village of Morton Grove,34 and Farmer v. Higgins.35
Lewis is a reintegration of the Court's view of the Second Amendment in the context of the Equal Protection Clause of the Fourteenth Amendment. Here, the Court held that the Equal Protection challenge to gun control laws does not pass constitutional muster, because a legislative restriction on the use of firearms does not "trench upon any constitutionally protected liberties."36 Both Quilici and Higgins are cases in which the Supreme Court denied review and allowed the lower court's rulings in favor of gun control to stand because their were consistent with the Supreme Court precedent. In Quilici, a Second Amendment challenge was made to a local ordinance banning handguns, with an exception made for police officers, prison authorities, members of the armed forces, and licensed gun clubs and collectors. The Illinois District Court countered the plaintiff's argument that Pressner supported their claim by pointing out that the quote they had used, "the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms . . ."37 had been taken out of context. In its entirety, the phrase reads that the states cannot prohibit people from bearing arms "so as to deprive the United States of the rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."38 The court emphasized that the Chicago ordinance did not interfere with the ability of the U.S. to maintain public security, and that irrespective of the Framer's concern about the formation of a national standing army, the U.S. has one and uses it, not private citizens, to maintain public security.39
In Higgins, the NRA, acting on its position that the individual has the legal right to bear arms, challenged a federal law prohibiting the manufacture and sale of machine guns to private citizens.40 The Supreme Court refused to hear the case, letting the lower court decision stand.41 These cases illustrate the unwavering view by the Supreme Court that there is no constitutional imprimatur on the NRA's argument that the individual has a legal right to bear arms. The issue thus rests, uncontroverted, in the courts, but the academic community has not yet reached such a unanimous view.
Only a small portion of legal academic material has been devoted to an inquiry into the Second Amendment implications of the gun control argument. The central issue in the academic debate os equivalent to that in the realm of politics: The meaning of the phrase "the right of the people." A few academics argue that there is an individual right to bear arms. This group maintains that the Second Amendment should be read to apply to the states, therefore limiting the state regulation of private gun ownership. Their rationale is that Cruikshank and Pressner were decided before any of the amendments comprising the Bill of Rights were incorporated to apply to the states. These "individual right to bear arms" proponents argue that the two cases should be treated in the same way as the other cases decides at the same time which refused to incorporate the amendments in the Bill of Rights and which are not relied on as precedent.42 This group also advocates a more "colloquial" reading of the amendment's phrase, "right of the people," which would thus create a right that individuals can assert.43
However, communitarians and majority of legal academics hold that the Second Amendment confers no individual right to bear arms.44 The rationale behind this position is that the Second Amendment was motivated by states' apprehension that Congress might demand disarmament of state militias.45 A close look at the history surrounding the Second Amendment shows that the Framers of the Constitution were concerned with ensuring that the states would always be well-equipped to "nullify federal imposition on their rights and to resist by arms if necessary."46 The Framers' concern at that time has now, with the evolution of American history and the role of the federal government, been largely resolved.47 In addition, an examination of the Second Amendment in the context of the entire Constitution reveals the Framers' efforts to create a society which nurtures communitarian ideas of responsibility balances with, and not eclipsed by, individual rights.48 © 1992
Endnotes
1. JAMA (Journal of the American Medical Association), "Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia," abstract, June 19, 1992, Vol. 267, No. 22, p.3017.
2. "Handgun Laws in the Other Industrialized Countries," courtesy of Handgun Control Inc., Washington, D.C.
3. L.A. Fingerhut & J.C. Kleinman, JAMA, "International and Interstate Comparisons of Homicide Among Young Males," Vol. 263, No. 24, June 27, 1990.
4. Lenior News-Topic, "Control Crime, Not Our Guns," Larry Pratt, Executive Director of Gun Owners of America, March 25, 1992.
5. Los Angeles Times, "Rifleman Kills 5 at Stockton School," Mark A. Stein & Peter H. King, January 18, 1989.
6. Kids & Guns: A Child Safety Scandal, 2nd Ed., American Work Center & The Educational Fund to End Handgun Violence, June, 1989.
7. Kids & Guns: A Child Safety Scandal, 2nd Ed., American Youth Work Center & The Educational Fund to End Handgun Violence, June, 1989.
8. New York Newsday, "1 Dead, 7 Hit in Drive-By Barrage," Chapin Wright, May 4, 1992.
9. Los Angeles Times, "Jury Hears Gang Murder of Toddler, Neighbor in 1989," Emily Adams, April 23, 1992.
10. Uniform Crime Report (UCR), Federal Bureau of Investigation, U.S. Department of Justice, 1970.
11. Saltzman, Mercy, O'Carroll, Rosenberg & Rhodes, "Weapon Involvement and Injury Outcomes in Family and Intimate Assaults," JAMA, pp. 3043-3047.
12. Robert Coles, "America Amok," The New Republic, 155:8 (August 27, 1966) p. 14, as cited in Marvin E. Wolfgang and Frances Ferracuti, The Subculture of Violence, New York: Travistock Publications, 1967, p. 189.
13. For this section, we based our general argument on that presented in Frank Zimring's "Is Gun Control Likely to Reduce Violent Killings?" a mimeograph report of the Center for Studies in Criminal Justice, University of Chicago, (republished in the University of Chicago Law Review, 35:721 (1968).
14. Ibid, p. 3.
15. Wolfgang and Ferracuti, p. 189.
16. See Zimring, p.23, also UCR, 1970, p.9.
17. Commander Francis Flanagin, in a television interview about Chicago's 600th homicide of 1968, quoted in George Newton and Frank Zimring, Firearms and Violence. A Staff Report was submitted to the National Commission of the Causes and Prevention of Violence, Washington, United States Government Printing Office, 1969.
18. This ration was determined but Frank Zimring based in a tidy of 510 homicides, reported to the Chicago police on 1966, and 480 serious assaults involving knives or guns reported in the 5th period of 1968. In Zimring, pp. 4-5.
19. American Journal of Public Health, "Without Guns, Do People Kill People?", June 1985, Vol. 75, No.6, pp.587-88.
20. Zimring, pp.2-3. Wolfgang and Ferracuti estimate that "probably less that 51% of all known killings are premeditated, planned, and intentional." p.189.
21. U.S. Const. amend. II.
22. Id.
23. December 16, 1991.
24. Speech before the American Bar Association, 1988.
25. 92 U.S. 542 (1875).
26. Id. at 533.
27. 116 U.S. 252 (1886).
28. 14 S Ct. 874 (1894).
29. Id. at 874.
30. 306 U.S. 174 (1939).
31. Id. at 178.
32. Id.
33. 445 U.S. 55 (1980).
34. 532 F. Supp. 1169 (1981); cert. den., 464 U.S. 863 (1983).
35. 907 F 2d 1041 (11th Circ 1990); cert. den., 111 S. Ct. 753 (1991).
36. Lewis, 445 U.S. 55, 65, n.8 (1980).
37. Pressner, 116 U.S. at 265.
38. Id. (emphasis added).
39. Quilici. 532 F. Supp. 1169, 1181 (1981).
40. Higgins, 907 F 2D 1041 (11th Cir. 1990). 41. Farmer v. Higgins, cert. denied, 111 S. Ct. 753 (1991).
42. Halbrook, The Right to Keep and Bear Arms, 173-4 (1984).
43. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 213 (1983) [hereinafter Handgun Prohibition].
44. See generally, Kates, Handgun Prohibition, supra note 23; Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989).
45. Kates, Handgun Prohibition, supra note 23 at 212.
46. Id.
47. Id.
48. Shalhope, The Armed Citizen in the Early Republic, 49 Law & Contemp. Prob., 125, 141 (1986).
Additional Sources
Brady Handgun Violence Prevention Act, submitted by Mr. Brokks, from the Committee on the Judiciary, May 2, 1992.
Children and Guns, Hearing before the Select Committee on Children, Youth, and Families, House of Representatives, June 15, 1989.
Criminal Victimization in the United States, 1990, Office of Justice Programs, Bureau of Justice Statistics, U.S. Department of Justice.
Gun Free School Zones Act of 1990, Hearing before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, September 6, 1990.
Handgun Violence Prevention Act of 1989, Hearing before the Subcommittee on the Judiciary, House of Representatives, April 26, 1990.
Legislation to Modify the 1968 Gun Control Act, Hearings before the Committee on the Judiciary, House of Representatives, October 28, 30, November 9, 1985; February 19 and 27, 1986.
Sourcebook of Criminal Justice Statistics 1990, Office of Justice Programs, Bureau of Justice Statistics, U.S. Department of Justice.
Uniform Crime Reports, 1990, Federal Bureau of Investigation, U.S. Department of Justice. |
|
The Communitarian Network |